Correcting A Visa Application


In Duggal 1314475 [2014] MRTA 259 (24 January 2014), the MRT found that a visa applicant could correct a visa application if an inadvertent error had been made.  Here the applicant did an on-line application himself and put in ‘chef’ but got a skill assessment for cook.  Here how the MRT found for the applicant:

13.The Tribunal considers that the decisions in Patel and Shafiuzzaman leave open that it may be possible to correct an incorrect answer of this kind, such as under s.105 of the Act. Such a view was recently endorsed in KC v Minister for Immigration [2013] FCCA 296), where Cameron J observed (at [16]-[17]):

The Tribunal in this case expressed the view that it was not possible to change a nominated occupation after a valid visa application had been made and cited in support of that proposition the decision of Lloyd-Jones FM in Chen v Minister for Immigration & Citizenship [2011] FMCA 859 at [58].  However, his Honour appears not to have been taken to s.105 of the Act, which requires visa applicants to correct incorrect answers given in visa application forms and which would appear to be the statutory basis for form 1023, two of which documents the applicant lodged prior to the commencement of these proceedings.  In Patel’s case, Robertson J left open the possibility that an erroneous occupation nomination could be corrected pursuant to s.105.  To determine this case it is not necessary to express disagreement with the relevant conclusion of Lloyd-Jones FM in Chen’s case but I do observe that it does not appear to sit well with Robertson J’s obiter comments in Patel’s case.

It is not necessary to give detailed consideration to s.105 and its possible operation to permit correction of a mistaken occupation nomination because the Tribunal found as a fact that the applicant did not make a mistaken occupation nomination but, rather, changed his mind about which occupation he wanted to nominate. That finding was open to the Tribunal although, given the nature of the occupational assessment which he had undertaken, the position advocated by the applicant, both at the Tribunal and before this Court, would appear to have been at least as open.  

14.Having regard to the evidence before it, the Tribunal accepts that the applicant did not change his mind after lodgement about which occupation he wanted to nominate. Rather, the Tribunal accepts that, in the process of preparing and submitting his online application, he made an unintended clerical error in selecting chef rather than cook as his nominated occupation. In the absence of clear authority on this issue, and in line with the above comments from KC, the Tribunal is prepared to give the applicant the benefit of the doubt in accepting that it is open to him to correct his nominated occupation in these limited circumstances.

Having regard to the above, the Tribunal finds that the applicant’s nominated occupation for the purposes of his application is cook.

Barbara Davidson